Empirical evidence indicates that rates of Cyber Libel have not been significantly reduced by the introduction of the System.98)Further, the Real Name Verification System is easily circumvented by premeditating defamers and will thus fail to prevent the most dangerous and blameworthy defamatory statements, those that are actually false and made with an intent to defame the subject.99)Google’s response to the law as it applies to YouTube, complete with posting a link to a web page with simple instructions for the law’s cir- cumvention posted in Korean,100)demonstrates one means by which internet contributors can effectively avoid the requirement. Migration to the use of Google products, not just for posting online videos but also for blogging101) and other methods of creating online content, has become an increasingly popular method for individuals in Korea to remain anonymous.102)Given the means available to a party who intends to defame another online, including the use of someone else’s identification number,103)it seems that the Real Name Verification System is particularly unlikely to prevent the most premeditated and egregious acts of defamation.104)
98) See supraSection V. 1., “Deterrence of Cyber Libel.”
99) Under Korean law, defamation does not require a showing that the allegedly defamatory statement is false or that the accused had intent to defame, but these two factors trigger heightened potential punishments. See CRIMINALCODE, art. 309; INFORMATION AND
COMMUNICATIONSNETWORKACT, art. 70. See also supraSection II, “Relevant Defamation Law.”
100) See YouTube Korea Blog, supranote 89.
101) Google provides its “Blogger” service (www.blogger.com) to Korean users. So far, it has not qualified for the Real Name Verification System due to the number of daily users, but the site could be the source of future conflict with the Korean government if its popularity continues to grow.
102) See Tong-hyun Kim, Google Avoids Regulations, Korean Portals Not so Lucky, KOREATIMES, Apr. 27, 2009, available athttp://www.koreatimes.co.kr/www/news/tech/tech_view.asp?
newsIdx=43939&categoryCode=129.
103) A google.com search conducted by the Korean Information Security Agency produced well over a hundred thousand usable Korean ID numbers that could be obtained for free online.
Google Exposing Thousands of Korean ID Numbers, CHOSUNILBO, Sept. 22, 2008, available at http://english.chosun.com/w21data/html/news/200809/200809220010.html.
How could the Korean government boost the effectiveness of the law?
One option might be to further strengthen the law, such as by increasing penalties. However, to target those who can currently evade identification, the only options for truly preventing the posting of defamatory statements might be to require heavily trafficked sites to not permit any postings or commentary at all, or to sharply confine user contributions and assign heightened ISP liability for postings and contributions that are permitted.105) Regardless of whether this would be constitutional in Korea, such legal modifications seem too draconian and likely to chill internet freedoms to be seriously considered.
The government might also consider a change in the law or the enforcement of the law to elicit a more cooperative stance by Google and to deter other major ISPs who would permit Korean users to effectively select another jurisdiction’s laws when utilizing a service.106) This measure could force the issue that Google has sought to avoid: a choice between on the one hand, complying with the letter (and spirit) of the law and compromising a stated objective of promoting “privacy” for internet users,107)or on the other hand, more fully limiting Korean access to the site, thereby reducing the reach and market share of internet properties while preserving user anonymity.
However, the Korean government first faces the awkward and difficult choice of either accepting Google’s current position or initiating an open conflict with the company.
104) Provocative research already exists suggesting that instances of Cyber Libel have not been curbed by the introduction of the Real Name Verification System. See Woo et al., supranote 11, at 20-21.
105) Scholars have called into question whether current legal requirements for Korean ISPs may already be too onerous. See Kwon, supranote 23, at 131-134.
106) Many available internet portals do not have a legal presence in Korea and could operate outside of Korea’s Real Name Verification System with no obligation or legal consequence for doing so. The greatest impact of the law may ultimately be to cause individuals to switch to non-Korean portals that might be less likely to be frequently viewed by a large Korean audience. In that case, compelling removal of the offending content would be made more difficult or even impossible. In the process, Korea could make itself a less attractive jurisdiction for major ISPs to maintain an employment-generating, tax-paying physical presence.
107) See Google Privacy Center, supranote 88.
2. Interference with Free Expression and Privacy
Free expression is critical to a politically free society, and free expression on the internet is particularly critical to Korean democratic culture. As Professor Youngjoon Kwon states, “Online democracy [in Korea] has reached its pinnacle, due mainly to two factors: a remarkably high broadband penetration rate and a great number of electronic bulletin boards.”108)To this I would add a more abstract consideration, the youth and vigor of Korea’s less- than-20-year-old democracy, which has largely taken shape in the internet age.
In the case of Korea, the same generations of individuals who utilize the internet as part of everyday life witnessed and participated in the birth of the present Korean democracy.109)The potential of cyberspace to facilitate many forms of democratic activity, together with the fact that these activities have taken place online for about as long as civilian democracy has existed in Korea, establish a meaningful social link between internet freedom and democracy.
Cyberspace has already facilitated South Korean democratic participation, as illustrated by the crucial role of online political activism in the election of former President Moo-hyun Roh. Mr. Roh ran against the favored Grand National Party candidate Hoi-chang Lee in the 2002 election with a political strategy that made extensive use of online campaigning and used e-mail and text messages to communicate with supporters. One online point of coalescence for Roh supporters was the popular online news site OhmyNews.110)On the day of the elections, Roh supporters furiously blogged and encouraged others to vote.111)Roh narrowly won the presidency.112)Online political activities
108) Kwon, supranote 23, at 122.
109) The transition from authoritarian government to democracy was at least partially driven by mostly peaceful protests in Korea.
110) Woo-Young Chang, Online Civic Participation, and Political Empowerment: Online Media and Public Opinion Formation in Korea, 27 MEDIA, CULTURE& SOC’Y, 925, 931 (2005).
111) Id.
112) See Sang Yin Lee, Rohmoohyun 16dae daetongryung dangseon[Roh Moo Hyun elected as the 16thpresident], CHOSUNILBO, Dec. 19, 2002, available athttp://news.chosun.com/svc/content_
view/content_view.html?contid=2002121970408 (Korean).
intersected with traditional political organization and arguably helped to determine a critical election outcome and created new roles for citizen participation in politics.113)
In light of the social value of free expression, the concept of “privacy” in the online space becomes more complicated. Proponents of the Real Name Verification System correctly assert that individuals have an interest in the protection of their private “personal rights,” such as reputation and freedom from libel.114)However, individuals also have an interest in privacy in a different sense, that is, in maintaining an anonymous profile online for the purposes of utilizing legitimate expressive and associative opportunities while being insulated from the possibility of stigma or suppression.115)While some have questioned the value of anonymous expression,116)examples of the value of anonymity include the sharing of sensitive information regarding personal health issues, matters of personal and sexual identity,117)and politically controversial topics.118)The Constitution explicitly protects the reputation of Korean individuals,119) but reputation should be understood to include
113) See Ihlwan Moon, Have Computers, Will Fight for Reform, BUS. WK., Feb. 16, 2004, available athttp://www.businessweek.com/magazine/content/04_07/b3870077.htm.
114) See Wan Choung, Cyberpokryeokui Pihaesiltaewa Daeeungbangan[A Legal Study of Cyber Violence], 13 PIHAEJAHAKYEONGU[KOREANJ. OFVICTIMOLOGY] 329, 347-48 (2005). Professor Choung describes “in-gyeok kwon,” translated here as “personal rights,” as requiring the protection provided by such policies as the Real Name Verification System.
115) As Justice Hugo Black insightfully wrote in Talley v. California, a case in which the U.S.
Supreme Court invalidated a Los Angeles city ordinance illegalizing handbills unless they were printed with the names and addresses of their authors, “Persecuted groups and sects from time to time throughout history have been able to criticize the oppressive practices and laws either anonymously or not at all… It is plain that anonymity has sometimes been assumed for the most constructive purposes.” Talley v. California, 362 U.S. 60, 65-66 (1960).
116) This debate also rages in American society. See, e.g., Randy Cohen, Is It O.K. to Blog About This Woman Anonymously?, N.Y. TIMES, Aug. 24, 2009, available athttp://ethicist.
blogs.nytimes.com/2009/08/24/is-it-ok-to-blog-about-this-woman-anonymously/?emc=eta1.
117) See Woo and Lee, supranote 16, at 28-29 (citing David J. Phillips, Negotiating the Digital Closet: Online Pseudonyms and the Politics of Sexual Identity, 5 INFO. COMM. & SOC’Y406 (2002)).
118) Although this discussion principally focuses on opportunities for overtly political expression online, the concept of “democratic culture” that is embodied and advanced by online expression can be much more inclusive, including topics from all facets of popular culture.
According to Professor Jack Balkin, “Freedom of speech means giving everyone … the chance to use technology to participate in their culture, to interact, to create, to build … whether it be [about] politics, public issues, or popular culture.” Balkin, supranote 2, at 45.
119) See CONSTITUTION OFKOREA, art. 21(4).
personal control over reputation, and integral to that control is power over the public identity that the individual creates for herself.
Initial Korean government analysis suggested that the Real Name Verification System had not had a “chilling effect” on Korean expression through the internet due to a consistent or increasing number of posts after the System was introduced.120)However, this fact alone does not establish a lack of chilling effect, as the introduction of Real Name Verification may have slowed the rate of increase in posting that may have otherwise occurred.
Furthermore, statistics alone cannot reveal the kind of expression that is made (or not made) through the internet, and it is possible that speech on particularly sensitive but socially important subjects has been reduced.
At best, the Real Name Verification System invites misapplication.
Heightened online restrictions and punishments have been defended as a way to prevent or at least more swiftly punish “a second and third ‘Minerva’
situation,”121)but Mr. Park was not guilty of a crime. The prevention of the second and third Minervas, then, would not appear to be an act of crime prevention, but rather a restriction of the free exchange of information and ideas regarding topics of the utmost social importance.
3. A Proposal for Mitigating Individual Freedom Concerns
Since the most troubling (and internationally distinctive) aspect of the Real Name Verification System is that it is mandatory, it may be effective to convert the System to a voluntary program where ISPs may “opt-in.” This would permit posters to seek the System’s protections while also respecting others’
preferences for privacy and open expression. Assuming that some major ISPs would opt into the Real Name Verification System while others would not, bloggers and other authors could choose between preserving their own anonymity and accepting that commenters would also be anonymous, or
120) Korea Communications Commission, supranote 82, at 18.
121) At Assembly hearings in January 2009, See-joong Choi, chairman of the Korea Communications Commission, said, “If there were a cyber defamation law, we would be able to avoid a second and third ‘Minerva’ situation.” Tong-hyung Kim, Cyber Defamation Law May Be Softened, KOREATIMES, Apr. 21, 2009, available athttp://www.koreatimes.co.kr/www/news/
biz/2009/04/123_43565.html.
registering for the Real Name Verification System, foregoing full anonymity for the comfort that those posting responses would also have completed the registration process. While this proposal does not solve the problem of original defamatory posts (as such posters would be likely to avoid portals opting into the System), it would preserve a major purported benefit of the Real Name Verification System while providing channels for fully free expression.